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Holt v. A.l. Salzman & Sons

SEPTEMBER 20, 1967.




Appeal from the Circuit Court of Cook County; the Hon. DANIEL A. ROBERTS, Judge, presiding. Judgment affirmed.


Rehearing denied November 10, 1967.

Defendant, A.L. Salzman & Sons, a corporation, appeals from judgments entered in the Circuit Court of Cook County in favor of plaintiffs, Gault H. Holt, Fred Fanter and George Cady in the amounts of $16,250, $5,000, and $26,250, respectively, in their suits to recover for personal injuries. Plaintiffs, who are sheet metal workers, were engaged in laying metal sheets on the joists of a building then being constructed, when the joists collapsed, and plaintiffs fell and were injured.

Originally, in addition to the defendant, A.L. Salzman & Sons, Milton H. Callner, d/b/a Milton H. Callner & Company, Milton H. Callner, Inc., a corporation, Ceco Steel Products Corporation, and LaSalle National Bank, as Trustee under Trust No. 13411, were named as parties defendant. Neither the record nor the abstract shows when and in what manner the defendant, LaSalle National Bank, was dismissed from the case. On October 3, 1962, the court entered an order nunc pro tunc as of October 1, 1962, which provided:

"This matter coming before the court on motion of the plaintiffs, the court being fully advised in the premises,

"It Is Hereby Ordered that these consolidated causes be, and hereby are, dismissed without costs and with prejudice as to Milton H. Callner, d/b/a Milton H. Callner & Company, Milton H. Callner, Inc., a corporation, and Ceco Steel Products Corporation, a corporation, only; and without prejudice to the causes of action proceeding as against A.L. Salzman & Sons, Inc., a corporation."

Plaintiffs were then given leave to file, and filed instanter, their fourth amended complaint, naming the defendant, A.L. Salzman & Sons, a corporation, as the sole party defendant. The case proceeded to trial and the jury returned verdicts in favor of the plaintiffs in the amounts of $25,000, $7,500 and $40,000, respectively.

In its answer, and again in its post-trial motion, defendant alleges, and plaintiffs admit, that the defendants who were dismissed from the case have paid plaintiffs a total of $25,000. Upon denying the post-trial motion the court entered judgments in the above amounts, the figures being computed by reducing each verdict by the amount received by the plaintiff from the dismissed defendants.

Defendant contends that the payments by the dismissed defendants and the dismissal, with prejudice, of the cases against them, constituted a release of those defendants, and served to release all joint tortfeasors. Although the parties refer to "Covenants to Terminate Litigation" executed by plaintiffs in connection with the payments, no such documents appear in the record.

In support of its argument defendant cites Aiken v. Insull, 122 F.2d 746 (CA 7th), Bryan v. Creaves, 138 F.2d 377 (CA 7th) and Petroyeanis v. Pirola, 205 Ill. App. 310. That Aiken and Bryan are clearly distinguishable from this case is best demonstrated by the opinion written by Judge Kerner (also the author of Aiken) in Essington v. Parish, 164 F.2d 725, wherein at page 729, he said: "However conflicting the authorities may be in respect to the proper construction of the instruments here involved, we think the law is now settled in Illinois that the substance of the agreement is the controlling factor, and that the essential fact to be determined is `what was the intention of the parties.' Illinois looks to all the circumstances to determine whether or not the transaction was intended as, and was in substance, a settlement and satisfaction, or merely an agreement not to sue, and that, as was held in City of Chicago v. Babcock, supra, 143 Ill. 367, 32 N.E. 271, is a question of fact. The Aiken v. Insull and Bryan v. Creaves cases, supra, are not opposite. In the Aiken case this court held that in substance (actual intent) as well as in form (language employed) the instrument constituted a release, while in the Bryan case, supra, 138 F.2d 377, 378, the agreement recited that they (the parties) were `"desirous of composing and compromising their differences" and that the contract should constitute "a full settlement of claims between the parties hereto, accruing up to this date"'." With respect to Petroyeanis, we can add nothing to the language found in Van Meter v. Gurney, 251 Ill. App. 184, 186-187, and quoted in Hulke v. International Mfg. Co., 14 Ill. App.2d 5, 142 N.E.2d 717.

Applying the rule as stated in Essington that the "essential fact to be determined is `what was the intention of the parties,'" we hold that the order entered by the trial court shows clearly and unequivocally that it was the intention of the parties not to release plaintiffs' claims, but to terminate the pending litigation and desist from further proceedings, and the entry of the order of dismissal did not serve to bar plaintiffs' claims against the defendant.

Plaintiffs' fourth amended complaint is in two counts. In Count I they allege that defendant is a corporation engaged in the business and profession of architecture, that it was engaged by the dismissed defendants Callner to draw plans, specifications and drawings for a building and to "check, revise and approve" plans, specifications and drawings prepared by the dismissed defendant, Ceco Steel Products Corporation, and did so, that for the purpose of approving the work prior to payments to the subcontractor it was also engaged to check and inspect the performance of certain portions of the work including the erection of certain joists, and that plaintiffs were injured as the result of the collapse of the joists. This count charges defendant with 17 acts of negligence which will be enumerated and discussed to the extent necessary to this opinion. Plaintiffs also allege their freedom from contributory negligence.

In Count II plaintiffs allege that the defendant wilfully failed to provide and design proper, sufficient and adequate bar joists and bridging, failed to provide for the erection of said joists and bridging in a safe manner, failed in their plans, specifications and drawings to provide for proper and adequate stays, supports, joists and bridging, that it wilfully approved or designed plans for the joists without provision for proper intermediate supports, and wilfully approved or designed plans for joists which were inadequate to bear, in addition to the dead load, a live load of 50 pounds for every square foot, and that the foregoing constitute wilful violations of the Structural Work Act (c 48, §§ 60-69, Ill Rev Stats).

The evidence shows that Milton H. Callner, individually, or one of the Callner corporations, owned a parcel of land upon which a one-story commercial building was being erected. One of the Callner corporations acted as general contractor, and the Callner organization also had an architect in its employ. Defendant, a corporation engaged in the practice of architecture, was consulted by Callner, and there is no dispute that it prepared a substantial portion of the plans for the building, including the general layout and the plans for the columns, joists and roof decking. Defendant contends that Callner's employee-architect was the architect on the project, that its assignment was merely to do the "overflow" drawings, and it had no responsibility for seeing that the building was constructed in accordance with the plans and specifications. The record reflects neither a written contract between the defendant and Callner, nor any contract between the Callner-owner entity and the general contractor.

Callner entered into a contract with one Paul Arra to erect steel beams and bar joists which Callner had purchased from Ceco Steel Products Corporation, and to erect a steel roof deck with materials purchased from the same source. Defendant furnished Callner with architectural plans without details or specifications, and Arra employed a structural engineer to prepare the detailed plans. These detailed plans were delivered to Callner, and the evidence shows that the purchase order to Ceco Steel Products Corporation was based upon these detailed plans approved by defendant in its capacity as architect.

The contract between Callner and Arra which was prepared by defendant, required Arra to perform the work in accordance with plans "prepared by A.L. Salzman & Sons, Architect," and the provisions for payment, in two instances, provide for final payments to be made "after completion of such work and approval by the Architect."

The testimony shows that in erecting the building, the distance between the columns was to be 44 feet, and the span between the horizontal steel beams upon which the roof deck was to be constructed, was 20 to 21 feet. The joists are described as being fabricated of steel bars with open steel angles between the bars.

The top of the joist is referred to as a flange and the bottom as the chord.

The plans called for the steel bar joists to be spaced at intervals of 7 feet. The plans also provided for "clear top" bridging which is described as a steel member placed perpendicular, and attached to the flange of the joist by means of a bolt or a shop welded ...

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